Moore v. Biter, 742 F.3d 917 (9th Cir. 2014)

By ignoring AEDPA again and using its own “analysis,” the 9th Circuit  has written another case ready for Supreme Court reversal. Moore v. Biter is a California state court case overruled on federal habeas corpus.

Four years ago the Supreme Court disallowed enforcement of capital or LWOP sentences of juveniles in state courts on grounds minors are immature and should be offered an opportunity for rehabilitation when becoming adults. Graham v. Fla., 560 U.S. 48 (2010). Aside from the fact this “opinion” is absurd-18 year old adolescents should know murder is not allowed- a three judge 9th Circuit panel held “multiple term sentences” exceeding the lifetime of juveniles are equivalent to a LWOP sentence, and the penalty unenforceable. The panel cited no precedent.

Here is the opening sentence of the seven dissenting judges in Moore v. Biter denying rehearing of the three judge panel decision.  “Our Court defies AEDPA once again, this time by failing to distinguish a ‘life without parole’ sentence for juveniles from a multiple ‘term of years’ sentence.  A panel of this Court holds that Graham v. Fla., 560 U.S. 48 (2010) invalidates the latter, ignoring the contrary holding of the Sixth Circuit, disregarding the views of state courts across the country, and flouting Graham’s text and reasoning.”

This dissent is a serious charge but one repeatedly made by the Supreme Court in 9th Circuit cases.  The purpose of AEDPA directly condemns the three judge panel opinion that the Supreme  Court case of Graham v. Florida controls this case.  The California Court of Appeal and the California Supreme Court both held a sentence of multiple terms is not the equivalent of a life term imposed on juveniles in non homicide cases.  Whether the argument can be made that the linguistic difference in sentencing is indistinguishable, an intrepretation the 6th Circuit rejected, the result on federal habeas corpus is not to reinterpret  the rule and overturn state courts, but determine if the law  is “clearly established” Supreme Court law required by AEDPA.  It is not.

Here is the last sentence of the dissenting judges in the case: “Because the panel defies AEDPA, creates a circuit split, and threatens frequent and unjustified intrusions into state sovereignty, I respectfully dissent from our court’s regrettable failure to hear this case.”l

The 9th Circuit merely imposed its own usual ideological bias as though the case was on direct appeal from the district court.  Cert. to the Supreme Court will reverse the 9th Circuit panel.

Howard v. Clark, 608 F.3d 631 (9th Cir. 2010)

Stories about prisoners released from custody on the ground of alleged “factual innocence” are always heart-warming and sensitive. But establishing release from custody on grounds of “ineffective assistance of counsel” is a favorite alternative method of the 9th Circuit.  And “innocence” is not always established.   A twelve person jury found Howard guilty, but the 9th Circuit panel, having heard none of the testimony at trial, retried the case. The Howard case is another example of injustice to the public. As usual.

Howard was charged with murder of one man named Freeman and assault against another man named Ragland. This case was gang related, and those prosecutions are almost always difficult to prove for obvious reasons. But a liquor store employee (not a gang member), observed the shooting of the two men and unqualifiedly testified Howard as the culprit. The girlfriend of the murdered man also witnessed the shooting but was equivocal in her testimony. The defendant testified he was somewhere else.

The jurors, after hearing all the conflicting evidence, listening to the witnesses, and following the judge’s instruction, found Howard “guilty beyond a reasonable doubt.” The trial judge agreed and denied a motion for new trial. Howard appealed the verdict, and a three- judge state Court of Appeal affirmed the conviction, and rejected Howard’s assertion his attorney failed to call Ragland as a witness i.e, “ineffective assistance of counsel.”

The state supreme court denied review of the case. That should have been the end. Howard filed a petition for habeas corpus in Superior Court; denied. He filed the same petition in the Court of Appeal; denied. He failed file a petition for review in the Supreme Court foreclosing his opportunity to file certiorari in the U.S. Supreme Court. He filed a petition for habeas corpus in U.S. district court on the same ground of “ineffective assistance of counsel”; denied by a magistrate judge. The district court refused to give Howard a certificate of appealability, a document mandatorily required before seeking appeal. The 9th Circuit panel filed their own certificate, permitted the appeal, and ordered the district court to conduct an evidentiary hearing on the same ground of ineffective assistance of counsel.

A magistrate judge produced a record at the hearing to establish that a defense investigator and the DA office both tried to find Ragland but were unsuccessful. Despite this record, the magistrate judge found Ragland should have testified and counsel was ineffective in not locating him. The Magistrate judge recommended reversal and the district court judge agreed and reversed the conviction because Ragland had agreed that Howard had not shot him. The AG appealed to the 9th Circuit who accepted the magistrate’s findings.ount the number or people (jurors and judges) who heard this case before the 9th Circuit decision. This panel wondered why trial counsel (now deceased) did not use Ragland to testify.
The reasons: Ragland had 6 prior felony convictions and was on parole. A gang banger whose testimony at a trial would have been useless. Do you want that witness, who allegedly wrote a letter two years later denying Howard shot him, to testify ? Had it occurred to the 9th Circuit panel or the Magistrate judge, none of whom heard any of the evidence at trial, that Ragland’s testimony would have been told to his parole review board to demonstrate his excellent responsibility as a citizen?
No defense lawyer would have called a witness w ho would have been a joke to the jury. In identification cases the lawyers focus on the witness who inculpates the defendant. In this case, the liquor store employee would be intensely cross examined. And counsel would argue misidentification to the jury, particularly when the prosecution witness testified uncertainly.

Apparently the prosecutor did not think much of the defense when the case was returned from the 9th Circuit., and offered Howard retrial. Prosecutors know how difficult it is to retry a criminal case after 10 years. What they should have been done is seek review of the 9th Circuit decision in the Supreme Court.
Whether Howard is guilty is not the issue. Three federal judges on collateral review overturn the jurors, the trial judge, the California Court of Appeal, and the California Supreme Court on direct appeal of the verdict in state court. On habeas decisions, the 9th Circuit reverses the Superior Court, the three California Court of Appeal Justices (again) and the seven California Supreme Court Justices (again).

Amado v. Gonzales, 734 F.3d 936 (9th Cir. 2013)

This case confirms every previous Supreme Court reprimand of the 9th Circuit in collaterally reviewing state court convictions.  “Habeas corpus is a guard against extreme malfunctions in state criminal justice systems, not a substitute for ordinary error correction through appeal;” Harrington v. Richter, 131 S.Ct.770 (2011).  Collateral review (after the state court has affirmed a conviction) is subject to deference by federal courts and applies only if the decision is an unreasonable application of federal law and not a de novo appeal; AEDPA. “The habeas standard is difficult to meet because it was meant to be;” Harrington. The majority of the 2-1 9th Circuit panel completely ignores AEDPA in Amado v. Gonzales and retrys the trial entirely on its own initiative as though on appeal.

In a gang prosecution the testimony of witnesses other than law enforcement officers is not likely to come from anyone except other gang members. Obviously these witnesses are unreliable, often fear retaliation, and credibility always an issue.  In the Amado case, a black gang planned to forcibly enter a school bus carrying members of another gang.  When the bus arrived and stopped, the gang members stormed aboard and began beating and shooting riders. According to the witnesses who did testify, Amado was among the attackers who ran toward the bus when it stopped.  Some doubt arose whether he was carrying a gun, but he was not convicted of possessing a firearm; he was convicted of aiding abetting.

One of the witnesses for the prosecution was severely impeached and at trial recanted his statements he had given to police prior to trial implicating Amado and his possession of a firearm.  In fact, the witness was only briefly cross examined, presumably for recanting although he was also on probation for commission of a robbery. But Amado was tried as an aider and abetter, not a principal, and carrying a gun is irrelevant for that charge.  The majority panel wades into the trial record, speculates on what the jury might think if the prosecution had disclosed the recanting witness was on probation for commission of a robbery.

The prosecution conceded it failed to disclose the prior criminal record of this witness although that information was reflected in the witness’s probation report.  According to the panel majority, this non disclosure violated the Brady rule, and if disclosed the jury might have questioned the credibility of the recanting witness. On the defense motion for new trial the trial judge agreed the disclosure should have been made but doubted the consequence of influencing the jury who had already heard a witness recant his testimony yet they voted for a guilty verdict.  According to defense counsel, he did not discover the prior robbery conviction prior to trial and also that the witness was a member of a gang.

Many of the judges on the 9th Circuit have never tried a criminal case or presided over one.  Their naiveté is deplorable.  When a witness recants his pre trial statements to police implicating the defendant what does the jury think of his credibility?  In spite of that, the jury convicted Amado.  Other witnesses also implicated Amado, and the record does not disclose whether Amado testified.  The jury could understand all the witnesses were either gang members or familiar with gang members and knew credibility was in issue. The trial judge, who heard all the witnesses, refused a motion for new trial even assuming the prosecution should have disclosed the robbery conviction and probation report.

Where was defense counsel prior to trial?   This is a gang case and the first task a defense counsel does is demand the criminal records of all the witnesses because the probability of them having committed crimes themselves is obvious.  Defense counsel neither made no such request of the prosecution nor searched the records. And apparently he did not ask his client if any of the witnesses had criminal records.

The majority panel concludes the failure to disclose the information requires a new trial.  How do you think the prosecution will be able to do that?  This case, more than any other, ought to result in a Supreme Court decision to refuse federal appellate courts from hearing habeas corpus of state courts at all.  State courts can be limited only to cert. by the defendant alleging a “malfunction of the state court system.” The Supreme Court has previously denied the 9th Circuit reviewing state court search and seizure cases and parole hearings.


James v. Ryan, 733 F3d. 911 (9th Cir. 2013)

After having been reversed  by the Supreme Court (Ryan v. James, 133 S.Ct. 579 (2013), the 9th Circuit panel on remand rewrote its decision that will be reversed again when the State of Arizona files cert.

In a sadistic, vicious and brutal murder the defendant James kidnapped the victim, crushed his head with a rock, and threw him down an abandoned mine shaft to his death. James was convicted and sentenced to death in 1981 by an Arizona state court jury. After all appeals in state court were denied, James filed 3 post conviction habeas corpus petitions. All petitions alleged ineffective counsel (among other claims) and were denied by state court judges.  In the last (3d) petition the state court judge wrote: “. . .[as] to the entire petition . . . there are no genuine or material issues of fact or law that are in dispute that would entitle [James] to an evidentiary hearing.  No colorable claims have been made.” With that unambiguous statement, all the allegations of ineffective counsel were denied on substantive grounds. The U.S. district court agreed and denied James’ federal habeas corpus petition.

The 9th Circuit holds the state court language is a procedural ruling, the petition is not decided on the merits, and therefore AEDPA is inapplicable. Having reversed all Arizona courts and the U.S. district court judge, the panel reversed the state court penalty phase and remanded for a hearing on mitigation evidence and the ineffective counsel allegation. A 1981 case reversed once by the Supreme Court and destined for another one (unless the 9th Circuit votes to hear it en banc).

The Supreme Court has verbally lashed the 9th Circuit repeatedly for evading AEDPA, and this case is a dramatic example of judicial misapplication of the record. Harrington v. Richter, 562 U.S._ (2011).  All the habeas corpus claims in Arizona state court assert ineffective counsel.   The state court judge in the last petition wrote a 38 page opinion clearly denying the validity of all the ineffective counsel claims.  There is no procedural interpretation and the case has been decided on the merits. Another example of 9th Circuit defiance of AEDPA and the Supreme Court.

Vega v. Ryan, 735 F.3d 1093 (9th Cir. 1093)

Ignoring AEDPA again and writing a decision as though on direct appeal of a state court decision - a practice repeatedly condemned by the Supreme Court – a 9th Circuit panel reversed another case on collateral review.  Not only did the panel overrule the Arizona Court of Appeal and the Arizona Supreme Court, but reversed the U.S.District Court as well. All courts denied the petition for habeas corpus.

The district court held an evidentiary hearing on the usual “ineffective assistance of counsel” argument alleging trial counsel had failed to read the records before trial. The  magistrate judge recommended dismissal.  The district court judge agreed, but there is nothing in the record to show that counsel had failed to read the file when preparing for trial. The  9th Circuit panel cites no evidence in the evidentiary hearing to support that assertion.

Vega was convicted of sexual misconduct with his stepdaughter whose mother testified at trial her daughter had recanted her allegations. Despite cross examination of the victim on this issue, the jury convicted the defendant.  Several weeks after the trial, counsel learned the victim had previously recanted in talking with a Catholic priest.  No one, including Vega,  had told counsel about this evidence, and the Arizona Court of Appeal and the Arizona Supreme Court held this evidence not “newly discovered.”  The trial was the third trial against the defendant, and based on the two prior trials Vega and his prior trial lawyers were all aware of this recantation. Yet nothing in the record establishes the other lawyers or Vega  told counsel at the third trial. When counsel did learn of the second recantation he immediately filed a motion to vacate the verdict.  The trial  court, in addition to the Arizona Court of Appeals, the Arizona Supreme Court and the  district court judge all denied the appeal and post verdict proceedings.

How can a lawyer be “ineffective” if the defendant knows about important information and fails to tell counsel about it? The panel says the additional recantation would possibly have tilted the balance in defendant’s favor.  If the jury hears the mother of the victim tesity her daughter recanted her testimony and the jurors nevertheless convicted the defendant, where does this judicial conclusion emerge?

Congress must address eliminating federal court habeas corpus review of state courts. The record demonstrates a constant misconstruction of which this case is another example.

Lujan v. Garcia, 734 F.3d 917 (9th Cir. 2013)

Another state court conviction reversed by a 9th Circuit panel on habeas corpus grounds after the California Court of Appeal affirmed the verdict of first degree murder.

The evidence was overwhelming. The defendant Lujan repeatedly expressed his intention to kill his estranged wife.  He did so by lying in wait, smashing her head with a concrete block and, at the same time, killed a deputy sheriff whom she was dating. Killed the same way.

Detectives interviewed Lujan, informed him of his right to silence, and discussed the right to counsel but not precisely as worded in the standard Miranda card. Later on, the defendant asked if he could have an attorney present, and the detective explained obtaining an attorney on Sunday might be difficult but the decision was up to him.  The detective added some informal information and said the decision to have a lawyer lay in the defendant’s hands. Without reciting all the questions asked of Lujan, the tenor of the conversation was cordial and non threatening. The entire conversation was recorded and confirmed the absence of any coercion or threats.

At the trial in state court, Lujan admitted committing the murder, and the jury found him guilty. On appeal, the California Court of Appeal agreed the Miranda admonition “incomplete” but the confession at trial restating the same information Lujan  gave the detective created harmless error.  The federal district court on habeas corpus agreed on the incorrect explanation of of the Miranda warning. The 9th Circuit embraced this decision citing Harrison v. U.S., 392 U.S. 219 (1968-a case decided during the hey days of Supreme Court constitutional inventions).

The purpose of the Miranda rule informing suspects of the right to counsel and silence emerged to remove the constant argument of inconsistent statements between law enforcement officers and suspects occurring in a confined and threatening environment.  The Supreme Court attempted to eliminate allegations of “involuntary” statements elicited from suspects in custody by advising them of their right to silence and to the assistance of counsel. Well intentioned, but repeatedly expanded by other courts beyond its rationale as written by the Supreme Court.  Lujan is an example.

Because detectives did not read the form Miranda card but spoke to Lujan informally, without threatening or misleading him, the 9th Circuit panel granted habeas.  The trial court even ruled the confession was not involuntary.  In other words, the entire rationale underlying Miranda was absent. That consequence did not deter the 9th Circuit despite the California Court of Appeal decision or AEDPA.  In fact, because the defendant had confessed at trial, the admissibility of the confession in custody became redundant.  “No”, said the panel, if the inadmissible confession induced the defendant to testify it constituted “fruit of the poisoned tree” and could not be introduced in evidence.

Here is a case of a voluntary confession, confirmed by the defendant’s testimony at trial, upheld on appeal by a state court, but reversed by the 9th Circuit. The purpose of the Fifth Amendment prohibition of compulsory self incrimination is completely lacking in the  transcript of the confession.  The detective tried to explain to Lujan the option of talking to him or not, with or without an attorney.  According to the 9th Circuit panel, the detective failed to tell Lujan he could have an attorney before and during the questioning.  This is form over substance and a complete mis application of Miranda rationale.  Now a   man unquestionably convicted of murdering two people may go free or his retrial impaired.

It is time for Congress to end the endless charade of 9th Circuit reversals of state court convictions many years afterward on habeas corpus grounds.   Lujan is a perfect example. Under AEDPA the federal court has a heavy burden to reverse state couirts on collaeral review and must accept a reasonable state court decision-even if incorrect.  In reading the Court of Appeal decision, the state court judges interpreted the Miranda admonition and the questioning reasonably.

Stanton v. Sims, 134 S.Ct. 3 (2013)

In a case that had “reversal” written all over it, the Supreme Court reversed the 9th Circuit (again) in a brief per curiam opinion. The facts are written in the 9th Circuit opinion on p.2 of the blog (Sims v. Stanton), but briefly: at 1:00 a.m. an officer responded to a reported disturbance at a location in a gang area.  When he saw three men walking down the street, two quickly walked away into a nearby house but one continued. The officer, presuming that man might be involved in the disturbance, ordered him to stop. The man refused, hurried toward a gated house, and entered the yard. The office chased him, crashed through the gate, and accidentally collided with a woman standing behind the gate. She sued the officer who filed qualified immunity. 

The 9th Circuit refused the defense, contending the officer violated the “curtilage” and committed a Fourth Amendment violation. Aside from the silliness of the plaintiff in suing an officer who accidentally injured her in pursuit of a man, the 9th Circuit denied qualified immunity.  The Supreme Court, without commenting on the absurdity of this case and the wholly inapplicable rationale of invoking Fourth Amendment law, held that the officer in hot pursuit of a suspect under the facts of this case can enter the curtilage without a warrant for misdemeanors (P.C.148-refusing to comply with lawful order) as well as felonies and upheld the defense of qualified immunity.

Apparently if someone is injured by a law enforcement officer, acting in the course of his duties, the 9th Circuit will find civil damages without any consideration of conduct accidentally inflicted without any intent to injure someone and does not even qualify as negligence.  The officer was unaware of anyone standing in the yard behind the gate at 1:00 a.m. in the morning.  In fact, the officer’s conduct was not even negligence let alone a 1983 case. 

The 9th Circuit holds an embarrassing record of refusing to find qualified immunity.  Several years ago the court refused qualified immunity to officers who were in a high speed chase of an automobile.  The passenger either fell out of the vehicle or was thrown out, and the officers were unable to stop in time to avoid striking him.  In a 1983 lawsuit by the estate of the passenger alleging violation of due process, the 9th Circuit refused qualified immunity to the officer.  Reversed in a scathing opinion by the Supreme Court; County of Sacramento v. Lewis, 523 U.S. 835 (1998). There are more cases.

Urooj v. Holder, 734 F.3d 1075 (9th Cir. 2013

This Blog does not often discuss immigration cases because of their volume and despite innumerable judicial mistakes in the 9th Circuit.  But Urooj v. Holder, a 2-1 decision, illustrates the total absence of common sense in the 9th Circuit.

The undisputed record establishes that Urooj lied about her application for asylum, paid an “acquaintance” to memorize her false story at the IJ hearing, and who interpreted for her. At the IJ hearing, Urooj refused to answer any questions asked by the government lawyer who introduced her sworn statement conceding her false answers on grounds of impeachment. The IJ ordered her removal.

The 9th circuit panel held the government has the burden of proof to establish loss of a right to asylum. Why?  The person seeking asylum should have the burden of establishing the right to live in the U.S.  In any event, because the petitioner refused to answer questions posed by the government, the latter introduced her admission of false statements as impeachment (of her silence) evidence.  According to the 9th Circuit panel, since Urooj refused to answer questions, there was nothing to impeach, her silence was irrelevant, and no adverse conclusion could be drawn by the IJ.

Absurd.  This person, admitting she lied and refused to answer questions, is allowed to stay in this country?  Using evidentiary rules in litigation for impeachment in an IJ hearing?  If the panel insisted on using federal evidence law all they had to do was convert the impeachment statement to substantive law.  Is this panel decision form over substance? And now the case has to be reheard.  And we  wonder why the 9th Circuit has such a backlog and why we don’t review their immigration decisions.   This case can be decided in 2 paragraphs.

Ayala v. Wong, 730 F.3d 831 (9th Cir. 2013)

Another death penalty case reversed by the same judge who has never affirmed a state court capital case during the last decade and who himself has been reversed by the Supreme Court more often than any other judge.  If this case is not reheard en banc it will be reversed by the Supreme Court if the AG seeks cert.

When the Supreme Court decided Batson v. Kentucky 476 U.S. 79 (1986) the case gave every trial with a black or Hispanic defendant an automatic ground for appeal if the prosecution excused a minority juror. The Court set up a framework that applies in an infinite fact driven variety of cases and requires trial courts  to spend more time selecting a jury than conducting the trial.  A motion objecting to prosecution excusal of a minority juror now fills rooms with thousands of pages of voir dire transcripts, objections, hearings, appeals and grist for the habeas corpus mill-including the so-called “comparative jury analysis” requiring review of every juror questioned compared with those excused.

Ayala is no exception. Unfortunately, the trial judge inexplicably committed a serious mistake by allowing the prosecutor to explain his reasons for excluding minority jurors in camera without the presence of defense counsel.  In any event, the jury convicted Ayala and voted the death penalty.  On automatic appeal the California Supreme Court affirmed the conviction but only after holding erroneous the trial court hearing without counsel.  Despite the state supreme court ruling that the trial court hearing without defense counsl qualified as state and federal constitutional error, the Justices held the error harmless.  Conviction affirmed on appeal; habeas corpus granted in U.S. district court; appeal by the Warden to a three judge 9th Circuit panel; affirmed in 2-1 decision.

The majority 9th Circuit panel engaged in an academic linguistic analysis of the Batson case and its progeny. The panel concluded the California Supreme Court committed federal constitutional error and had not decided the direct appeal in state court on the “merits” of the Batson motion as required by AEDPA.  Absent a ruling on the merits, de novo review followed. The panel agreed the trial judge had decided erroneously, held this practice caused prejudice, and reversed.  Then the majority panel engaged in an endless discussion of comparative analysis of jurors, one of the most questionable rules ever invented, and completely misunderstanding the reason prosecutors excuse jurors.  Ayala, who killed three men, will probably go free after the 12 year period from his conviction.

The dissent skewers the majority and cites two cases recently decided by the Supreme Court specifically rejecting the majority analysis. Both case had reversed the 9th Circuit. The Ayala case has no precedential consequence, completely misrepresents the law, and is another example of the 9th Circuit efforts to manipulate and undermine the death penalty.

Larsen v. Soto, 730 F.3d 1930 (9th Cir. 2013

The 9th Circuit “re tried” another habeas corpus case relying on the evidence presented to a magistrate judge who had presided over a post trial hearing and who obviously knew nothing about criminal law.  The case was originally tried by a state court jury in 1999.  Larsen, convicted and sentenced, filed a habeas corpus petition in federal court after his appeal and petitions for habeas corpus in state court were denied.

First, the 9th Circuit had to dispose of the one year statute of limitations for filing petitions for habeas corpus in federal court under AEDPA.  According to the panel, if the petition alleges and supports “factual innocence” AEDPA does not apply.  The panel considered the evidence presented at the hearing and affirmed the district court decision granting the petition.  The Warden appealed to the 9th Circuit.

Officers responded to a call from a bar that a shooting had occurred by a man wearing a green flannel shirt and sporting a pony tail.  Upon arrival at the bar parking lot, the officers saw Larsen, the man who matched the description, throw a knife under a car.  Officers arrested Larsen, who had several prior convictions, gave officers a false name. The jury convicted Larsen of possession of a deadly weapon; conviction affirmed on appeal;  review denied by the state Supreme Court. Subsequent petitions denied.

The U.S. district court granted the petition alleging ineffective counsel and the Warden appealed to the 9th Circuit. Larsen alleged he was “factually innocent.” He asserted his attorney ineffectively represented him on 3 grounds: failure to call defense witnesses; failure to request evidence of fingerprints, or the lack thereof, on the knife; failure to present evidence of third party liability.  All this “evidence” was available to Larsen at the time of trial, verdict and sentence in 1999.  He did not file his state petition on these grounds until 2005, clearly in violation of the AEDPA rule requiring habeas corpus petitions filed within one year after final judgment.

Larsen filed 13 exhibits at the federal habeas hearing. One was signed recently by Mr.McNutt and his wife.who were present at the time of the arrest. Their testimony at the hearing roughly matched their declarations.  Mr. McNutt said another man threw the knife under the car, and Larsen threw nothing. Mrs. McNuttt saw no knife in Larsen’s hand. The McNutts  moved out of state for 2 years and did not know Larsen had been tried and convicted although they saw officers arrest him.  

In another hearsay declaration by  a woman, she stated a man told her he was the one who threw the knife under the truck but had not testified at trial because no one subpoenaed him.  Apparently the magistrate judge did not bother to hear the testimony of trial counsel for Larsen nor that of the officers.  She listened to the testimony of the above witnesses and found Larsen “factually innocent” on this absurd story.   No evidence was submitted on the ineffective assistance of counsel. Based on this story the 9th Circuit panel wrote an opinion that could have been resolved in one paragraph. Or one word.  Denied.

Larsen filed his state petition alleging ineffective counsel in 2005-after 6 years had elapsed and clearly an ineligible time to file a federal petition.  Under Supreme Court law, AEDPA does not apply to cases alleging “factual innocence” if the evidence warrants an exception by presentation of “new evidence.”  There is no “new evidence” here-just a credibility argument.  Obviously the jury rejected it.

The panel cites all the elements of the Warden’s arguments and rebuts every one.   The officers testified the arrest occurred at 12:30 a.m. The McNutts, said it was 7:30. p.m. Oh, just a disagreement on time except it gets dark later at night.  One of the witnesses who testified  at the hearing had been convicted of several felonies.  No problem, said the panel, he could still tell the truth.  It took petitioner 2 years to put this federal  case together and it is no different than the allegations in the state petitions.  And most importantly, said the panel, Larsen pled “not guilty.” 

Time for en banc.

Comment: this is another example of record manipulation.  Larsen alleged ineffective counsel on 3 grounds from the beginning.  All he had to do was assert the reasons for ineffective counsel within the one year period in state court. Instead, he waited 6 years and filed nothing until then. He could have proceeded pro per or sought appointed counsel.  The  panel says nothing about counsel nor cites any record of the trial or appeal in state court. The petition was untimely and Larsen had no grounds for factual innocence any different than at trial.